2.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and

2.1.2 not Process Customer Personal Data other than on the relevant Customer’s documented instructions or according to settings in the application controlled by the Customer.

2.1.3 The Customer instructs Processor to process Customer Personal Data.

2.2 The Customer agrees that it will not provide any Sensitive Data, according to the definition provided by GDPR, to Processor and Processor will have no liability whatsoever for any Sensitive Data, whether in connection with a security incident or otherwise.

2.3 Customer agrees and warrants that it is in compliance with all application laws, including Data Protection Laws, with respect to its instructions to process data on Customer’s behalf.

2.4 Customer further agrees to ensure that its instructions to process data on Customer’s behalf will not cause Processor to violate any applicable law, rule, or regulation.

3.1 Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

4.3 Customer agrees that it is responsible for the secure use of services provided by the Processor, including securing its account credentials, and ensuring the security of customer data when it transit to or from the Processor.

4.4 Customer acknowledges that Ontraport is regularly audited against PCI-DSS level 1 standards by independent third party auditors and internal auditors respectively. Upon written request, Ontraport shall supply (on a confidential basis) a summary copy of its most current audit report(s) ("Report") to Customer, so that Customer can verify Ontraport’s compliance with the audit standards against which it has been assessed and this DPA.

5.1 With the exception of subprocessors disclosed in Customer’s legal terms shall not appoint (or disclose any Customer Personal Data to) any Subprocessor unless required or authorized by the Customer.

5.2 In the event that Ontraport appoints a new Subprocessor, Company shall notify Customer in writing via email to the administrator of the Customer’s account.

6.1 As part of the Service, Processor provides Customer with a number of self-service features that may be used by Customer to retrieve, correct, delete or restrict the use of Customer Data in connection with its obligations under Data Protection Laws to respond to data subject requests.

Taking into account the nature of the Processing, Processor shall provide reasonable additional assistance to the Customer in Customer’s efforts to abide by Data Protection Laws. Processor will not respond to requests to exercise Data Subject rights under the Data Protection Laws, except to direct the Data Subject to the Customer with their requests. If Processor is required to respond further, Processor will promptly notify the Customer of such request and response.

6.2 Processor shall:

6.2.1 promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and

6.2.2 ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.

7.1 Processor shall notify Customer without undue delay upon Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 Processor shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8.1 Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9.1 Upon written request by the Customer, Processor shall promptly, and in any event within 20 business days of the date of written request, delete and procure the deletion of all copies of those Customer Personal Data.

10.1 Subject to this section 10, Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors. Customer agrees that the cost of such audits, to the extent allowable by applicable law, shall be borne by the Customer.

10.2 Information and audit rights of the Customer only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11.1 The Customer understands that the Processor will transfer of Data to countries outside the EU and/or the European Economic Area (EEA) and that the use of Processor’s services requires such transfer, and the Customer gives consent for such transfer through the use of Processor’s services. The Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

11.2 Data center locations. Customer acknowledges that Ontraport will transfer and process Customer Data to and in the United States and anywhere else in the world where Ontraport, its Affiliates or its Sub-processors maintain data processing operations. Ontraport shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.

11.3 Australian data. To the extent that Ontraport is a recipient of Customer Data protected by the Australian Privacy Law, the parties acknowledge and agree that Ontraport may transfer such Customer Data outside of Australia as permitted by the terms agreed upon by the parties and subject to Ontraport complying with this DPA and the Ontraport Privacy Law.

11.4 European Data transfers. To the extent that Ontraport is a recipient of Customer Data protected by EU Data Protection Laws ("EU Data") in a country outside of Europe that is not recognized as providing an adequate level of protection for personal data (as described in applicable EU Data Protection Law), the parties agree to the following:

(a) SCCs: Ontraport agrees to abide by and process EU Data in compliance with the SCCs in the form set out in Annex C. For the purposes of the descriptions in the SCCs, Ontraport agrees that it is the "data importer" and Customer is the "data exporter" (notwithstanding that Customer may itself be an entity located outside Europe).

(b) Privacy Shield: Although Ontraport does not rely on the EU-US Privacy Shield as a legal basis for transfers of Customer Data in light of the judgement of the Court of Justice of the EU in Case C-311/18, for as long as Ontraport is self-certified to the Privacy Shield: (i) Ontraport agrees to process EU Data in compliance with the Privacy Shield Principles and (ii) if Ontraport is unable to comply with this requirement, Ontraport shall inform Customer.

12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

(a) disclosure is required by law;

(b) the relevant information is already in the public domain.

12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to gdpr@ontraport.com.

12.3 Term of agreement. Parties agree that this Data Processing Agreement shall remain in effect for as long as Processor carries out Customer Data Processing on behalf of Customer, or until termination of the Agreement by written notice of either party.

12.4 Parties to this agreement: No one.

13.1 This Agreement is governed by the laws of the State of California, United States of America.

13.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of California.

(a) Controller (data exporter): Customer, being a Ontraport customer that has engaged Ontraport to provide the Service under the Agreement.

(b) Processor (data importer): Ontraport, a California Corporation, whose legal name is Ontraport, Inc.

(c) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.

(d) Duration of processing: Ontraport will process Customer Data as outlined in Section 9 (Deletion of Data) of this DPA.

(e) Purpose of processing: Ontraport shall only process Customer Data for the Permitted Purposes, which shall include: (i) processing as necessary to provide the Service in accordance with the Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement.

(f) Nature of the processing: Ontraport provides a CRM, email service, automation and marketing platform and other related services.

(g) Categories of data subjects: (i) Customers, which are Ontraport subscribers and (ii) Contacts, which are Data Subjects controlled by the Customer.

(h) Types of Customer Data: Customer may upload, submit or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of personal data:

• Customers: Identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility); any other information added by the Customer to Customer records.

• Contacts: Identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information); any other data stored by Customer about Contacts.

(i) Sensitive Data: Ontraport does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Service.

(j) Processing Operations: Customer Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities:

• Storage and other processing necessary to provide, maintain and improve the Service provided to Customer pursuant to the Agreement; and/or

• Disclosures in accordance with the Agreement and/or as compelled by applicable law.

The Security Measures applicable to the Service are described below (and as updated from time to time).

• Ontraport delivers billions of emails and web page views per year for thousands of users around the world. We use multiple MTAs, placed in different world-class data centers around the United States.

• Our data centers manage physical security 24/7 with biometric scanners and the usual high tech stuff that data centers always brag about.

• We have DDOS mitigation in place at all of our data centers.

• We have a documented infrastructure continuity plan.

• All databases are kept separate and dedicated to preventing corruption and overlap. We have multiple layers of logic that segregate user accounts from each other.

• Account data is mirrored and regularly backed up off site.

• Ontraport account passwords are hashed. Our own staff can't view them. If you lose your password, it can't be retrieved—it must be reset.

• All login pages (from our website and mobile website) pass data via TLS.

• The entire Ontraport application is encrypted with TLS.

• Login pages and logins via the Ontraport API have brute force protection.

• We perform regular external security penetration tests throughout the year using different vendors. The tests involve high-level server penetration tests, in-depth testing for vulnerabilities inside the application, and social engineering drills.

• Ontraport offices are secured by keycard access and biometrics, and they are monitored with cameras throughout.

• Our office network is heavily segmented and centrally monitored.

• We continuously train employees on best security practices, including how to identify social engineering, phishing scams, and hackers.

• Employees on engineering teams that have access to sensitive customer data undergo criminal history and credit background checks prior to employment.

• All employees sign a Client Privacy agreement outlining their responsibility in protecting customer data.

• In order to protect our company from a variety of different losses, Ontraport has established a comprehensive insurance program. Coverage includes, but is not exclusive to: coverage for cyber incidents, data privacy incidents (including regulatory expenses), general error and omission liability coverage, excess cyber liability coverage, property and business interruption coverage, as well as international commercial general liability coverage.

Ontraport is a PCI-DSS Level 1 certified and, as part of that certification, is regularly audited by internal and external auditors. Ontraport will provide evidence of certification upon request.

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Ontraport, a California Corporation, (hereinafter the "data importer") and Customer (hereinafter the "data exporter") each a “party”; together “the parties”, have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex 1.

Clause 1

Definitions

For the purposes of the Clauses:

• 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

• 'the data exporter' means the controller who transfers the personal data;

• 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

• 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

• 'the Data Protection Law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

• 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
   
   
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7,Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
   
   
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
   
   
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
   

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

• that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the Data Protection Law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

• that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the Data Protection Law and the Clauses;

• that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

• that after assessment of the requirements of the Data Protection Law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

• that it will ensure compliance with the security measures; that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

• to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

• to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

• that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

• that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

• to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

• that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

• that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

• that it will promptly notify the data exporter about:
  • any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
    
  • any accidental or unauthorised access, and
    
  • any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
    

• to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

• at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

• to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

• that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

• that the processing services by the subprocessor will be carried out in accordance with Clause 11;

• to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
   

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
   

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
   

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
   

• to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  
• to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the Data Protection Law.
   

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the Data Protection Law.
   

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
   

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
   

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
   

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
   

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
   

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
   

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
   

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

Details of the transfer:

Please see the details set forth in Annex A to the Data Processing Addendum ("DPA") to which these Clauses are appended.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Please see Annex B – Security Measures

APPENDIX 3 TO STANDARD CONTRACTUAL CLAUSES

The parties acknowledge that Clause 10 of the Clauses permits them to include additional business-related terms provided they do not contradict with the Clauses. Accordingly, this Appendix sets out the parties' interpretation of their respective obligations under specific Clauses identified below. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.

Clauses 4(h) and 8: Disclosure of these Clauses

1. Data exporter agrees that these Clauses constitute data importer's Confidential Information (as that term is defined in the Agreement) and may not be disclosed by data exporter to any third party without data importer's prior written consent unless permitted pursuant to the Agreement. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.
   

Clause 5(a) and Clause 5(b): Suspension of data transfers and termination

1. The parties acknowledge that for the purposes of Clause 5(a), data importer may process the personal data only on behalf of the data exporter and in compliance with its documented instructions as set out in the DPA and that pursuant to the DPA, these instructions shall be the data exporter’s complete and final instructions.
   

2. The parties acknowledge that if data importer cannot provide compliance in accordance with Clause 5(a) and/or Clause 5(b), the data importer agrees to promptly inform the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the affected parts of the Service in accordance with the terms of the Agreement.
   

3. If the data exporter intends to suspend the transfer of personal data and/or terminate the affected parts of the Service, it shall first provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).
   

4. In addition, the data exporter and data importer shall reasonably cooperate with each other during the Cure Period to agree what additional safeguards or other measures, if any, may be reasonably required to ensure the data importer's compliance with the Clauses and applicable data protection law.
   

5. If, after the Cure Period, the data importer has not or cannot cure the non-compliance in accordance with the paragraphs 3 and 4 above, then the data exporter may suspend and/or terminate the affected part of the Service in accordance with the provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by the data exporter prior to suspension or termination).
   

Clause 5(f): Audit

1. Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 4 (Security) of the DPA.
   

Clause 5(j): Disclosure of subprocessor agreements

1. The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.
   

2. The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
   

3. Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably can in connection with such subprocessing agreement to data exporter.
   

Clause 6: Liability

1. Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In no event, shall any party limit its liability with respect to any data subject rights under these Clauses.
   

Clause 11: Onward subprocessing

1. The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward subprocessing by the data importer.
   

2. Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out in Section 5 (Subprocessing) of the DPA.
   

1. Objection to Sub-processors. Customer may object in writing to Ontraport’s appointment of a new Sub-processor within five (5) calendar days of receiving notice in accordance with Section 5 of DPA, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, Ontraport will, at its sole discretion, either not appoint such Sub-processor, or permit Customer to suspend or terminate the affected Service in accordance with the termination provisions in the Agreement without liability to either party (but without prejudice to any fees incurred by Customer prior to suspension or termination).
   

2. Government data access requests. As a matter of general practice, Ontraport does not voluntarily provide government agencies or authorities (including law enforcement) with access to or information about Ontraport accounts (including Customer Data). If Ontraport receives a compulsory request (whether through a subpoena, court order, search warrant, or other valid legal process) from any government agency or authority (including law enforcement) for access to or information about a Ontraport account (including Customer Data) belonging to a Customer whose primary contact information indicates the Customer is located in Europe, Ontraport shall: (i) inform the government agency that Ontraport is a processor of the data; (ii) attempt to redirect the agency to request the data directly from Customer; and (iii) notify Customer via email sent to Customer’s primary contact email address of the request to allow Customer to seek a protective order or other appropriate remedy. As part of this effort, Ontraport may provide Customer’s primary and billing contact information to the agency. Ontraport shall not be required to comply with this paragraph 2 if it is legally prohibited from doing so, or it has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual, public safety, or Ontraport’s property, Sites, or Service.
   

1. For the avoidance of doubt, when European Union law ceases to apply to the UK upon the UK's withdrawal from the European Union and until such time as the UK is deemed to provide adequate protection for personal data (within the meaning of applicable EU Data Protection Law) then to the extend Ontraport processes (or causes to be processed) any Customer Data protected by EU Data Protection Law applicable to EEA and Switzerland in the United Kingdom, Ontraport shall process such Customer Data in compliance with the SCCs.
   

1. Except as described otherwise, the definitions of: “controller” includes “Business”; "processor" includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under CCPA.
   

2. For this “California” section of Annex D only, “Ontraport Services” means the suite of CRM, sales and marketing tools and insights available for Ontraport Customers to use, including without limitation, email campaign management, advertisements, and direct mailings and other related digital communications, analytics and tools made available through the Ontraport platform, as may be further described in the App and/or on the Ontraport Site.
   

3. For this “California” section of Annex D only, “Permitted Purposes” shall include processing Customer Data only for the purposes described in this DPA and in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, as otherwise agreed in writing, including, without limitation, in the Agreement, or as otherwise may be permitted for “service providers” under the CCPA.
   

4. Ontraport’s obligations regarding data subject requests, as described in Section 6 (Data Subject Rights and Cooperation) of this DPA, apply to Consumer’s rights under the CCPA.
   

5. Notwithstanding any use restriction contained elsewhere in this DPA, Ontraport shall process Customer Data only to perform the Ontraport Services, for the Permitted Purposes and/or in accordance with Customer’s documented lawful instructions, except where otherwise required by applicable law.
   

6. Ontraport may de-identify or aggregate Customer Data as part of performing the Service specified in this DPA and the Agreement.
   

7. Where Sub-processors process the personal data of Customer contacts, Ontraport takes steps to ensure that such Sub-processors are Service Providers under the CCPA with whom Ontraport has entered into a written contract that includes terms substantially similar to this DPA or are otherwise exempt from the CCPA’s definition of “sale”. Ontraport conducts appropriate due diligence on its Sub-processors.
   

1. Ontraport takes steps to ensure that Ontraport's Sub-processors, as described in Section 5 (Subprocessing) of the DPA, are third parties under PIPEDA, with whom Ontraport has entered into a written contract that includes terms substantially similar to this DPA. Ontraport conducts appropriate due diligence on its Sub-processors.
   

2. Ontraport will implement technical and organizational measures as set forth in Section 4 (Security) of the DPA.